Citation Nr: A25035673 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 220325-230646 DATE: April 17, 2025 ORDER The part of the December 2024 Board decision that assigned an effective date of December 3, 2021, for the grant of entitlement to a 30 percent rating for service-connected cephalgia is vacated. Entitlement to an initial compensable rating for service-connected cephalgia prior to October 4, 2021, is denied. Entitlement to an initial rating of 30 percent disabled for service-connected cephalgia, but no higher, since October 4, 2021, is granted. FINDINGS OF FACT 1. The part of the December 2024 Board decision that assigned an effective date of December 3, 2021, for the grant of entitlement to a 30 percent rating for service-connected cephalgia contained error which constitutes a denial of due process for the Veteran. 2. There is persuasive evidence that the Veteran did not experience any characteristic prostrating attacks prior to October 4, 2021. 3. There is some persuasive evidence that the Veteran's headache symptoms manifested one prostrating attack per month as early as October 4, 2021. CONCLUSIONS OF LAW 1. Vacatur of that part of the December 2024 Board decision assigned an effective date of December 3, 2021, for the grant of entitlement to a 30 percent rating for service-connected cephalgia is warranted. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. § 20.1000. 2. The criteria for entitlement to an initial compensable rating for service-connected cephalgia prior October 4, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100. 3. The criteria for entitlement to an initial rating of 30 percent disabled, but no higher, for service-connected cephalgia since October 4, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to May 1990. Procedurally, an August 2021 agency of original jurisdiction (AOJ) rating decision granted service connection for cephalgia, and assigned a non-compensable rating effective May 2, 2019. By letter dated August 10, 2021, the Veteran was notified of this decision and his administrative review options. In October 2021, the Veteran submitted VA 21-526EZ, Fully Developed Claim, claiming "HEADACHE INCREASE." Yet, in December 2021, the Veteran also submitted a supplemental claim which is an administrative review option of the August 2021 AOJ rating decision. A February 2022 AOJ decision continued a noncompensable rating. In March 2022, the Veteran timely filed for a Higher Level Review (HLR). The March 2022 HLR decision found no error in the February 2022 AOJ decision. In the March 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2022 AOJ rating decision. 38?C.F.R. § 20.302. The part of the December 2024 Board decision that assigned an effective date of December 3, 2021, for the grant of entitlement to a 30 percent rating for service-connected cephalgia is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. The Veteran is currently in receipt a rating of 30 percent disabled for service-connected cephalgia since December 3, 2021. However, the Board notes that, within one year of the August 2021 AOJ rating decision which assigned an initial non-compensable rating effective May 2, 2019, the Veteran chose an administrative review option of a supplemental claim in December 2021, which constitutes continuous pursuit of the initial rating. See 38 C.F.R. §§ 3.2500(c). The Board acknowledges that the Veteran also filed an October 4, 2021, EZ form which VA intended to constitute a claim for an increased rating. The most favorable interpretation of the filings in this case shows continuous pursuit of the initial rating. Thus, the Board erred in determining the date of claim in the December 2024 Board decision. Accordingly, the part of the December 2024 Board decision that assigned an effective date of December 3, 2021, for the grant of entitlement to a 30 percent rating for service-connected cephalgia must be vacated to resolve this error of due process. That portion of the December 2024 Board decision that granted entitlement to a rating of 30 percent disabled will not be disturbed. The vacatur portion of this decision is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b). Rather, the Board will reconsider the Veteran's claim below as if that part of the December 2024 decision that assigned an effective date of December 3, 2021, for the grant of entitlement to a 30 percent rating for service-connected cephalgia had never been issued. 1. Entitlement to an initial compensable rating for service-connected cephalgia prior to October 4, 2021, is denied. 2. Entitlement to an initial rating of 30 percent disabled for service-connected cephalgia, but no higher, since October 4, 2021, is granted. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under DC 8100, a rating of 10 percent disabled is warranted for migraines with characteristic prostrating attacks averaging one in two months over last several months. A rating of 30 percent disabled is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A rating of 50 percent disabled is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term "productive of severe economic inadaptability" is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). The term severe is defined as of a great degree. See https://www.merriam-webster.com/dictionary/severe. The term characteristic prostrating attacks means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Completely prostrating attacks must render a veteran to be entirely powerless. Id. at 253. Frequent has been defined as happening at short intervals; often repeated or occurring. See https://www.merriam-webster.com/dictionary/frequent. Very has been defined as to a high degree; exceedingly. See https://www.merriam-webster.com/dictionary/very. The Veteran's cephalgia is currently rated as noncompensable from May 2, 2019, to December 2, 2021, and 30 percent disabling thereafter. The undisturbed portion of the Board's December 2024 decision that granted a rating of 30 percent disabled did so on the following reason and bases: In December 2021, the AOJ obtained a disability benefits questionnaire (DBQ) related to the Veteran's service-connected headaches. The examiner reviewed the Veteran's records and noted a diagnosis of cephalgia. The examiner noted the Veteran was taking several medications for his headache pain. Further, the examiner noted symptoms of constant head pain; pulsating or throbbing head pain; pain on both sides of the head; and related neck pain. The examiner also noted that the Veteran experienced sensitivity to light, sensitivity to sound, changes in vision, and mild dizziness. The examiner indicated that the Veteran's headache pain typically lasted more than two days. Finally, the examiner determined that the Veteran experienced prostrating attacks once every month but indicated these attacks were not productive of severe economic inadaptability, also noting that they did cause decreased concentration and productivity. Historically, the Veteran filed his service connection claim in December 2019 claiming the onset of chronic headache in 1985. Service treatment records reflect treatment for sinus headaches and headaches associated with pleurisy. There was otherwise a description of headaches which felt like pressure around the head, and occasional (occ) headaches (H/A) at separation in 1990. VA clinic records reflect that, during a physical examination in 2018, the Veteran declared having "no complaints" in general and specifically denied "any complaints of headaches." His only medication was Viagra. At a VA examination in July 2020, the Veteran's headaches were described as follows: 55 YO STATES HIS HEADACHES BEGAN WHILE IN THE MILITARY. WENT TO SICK CALL GIVEN SINUS MEDICATION AND TYLENOL WHICH HELPED. STATES HE CONTITNUES (sic) WITH HEADACHES OCCURING 4-5 X A MONTH AND LASTING UP TO 3 HOURS. THEY ARE LOCATED IN THE FRONTAL ASPECT BEHIND EYES. DENIES PHOTOPHOBIA OR NAUSEA OR VOMITING OR VISUAL PROBLEMS. PRESENTLY TAKES TYLENOL AND ADVIL WITH SOME RELIEF. The VA examiner diagnosed the Veteran with cephalgia, and noted that symptomology included constant headache pain with sensitivity to sound that lasted less than 1 day and did not constitute prostrating attacks. The examiner opined that the headaches did not impact the Veteran's ability to work. The Veteran's subsequent VA clinic records include an October 2020 notation that there was no new onset of headaches in the context of a COVID-19 screen. In January 2021, the Veteran reported a significant change in headache and low back pain described as 6/10 in severity. In July 2021, the Veteran reported a significant change in headache, left foot and shoulder pain described as 6/10 in severity. In August 2021, the Veteran reported chronic headache but denied dizziness or weakness. On October 4, 2021, the Veteran filed a claim for "HEADACHE INCREASE." An October 13, 2021, VA treatment record indicated the intensity of his headache pain had worsened - "headache is bad." The Veteran described a headache for the last 3 to 4 days, of 9.5/10 severity, which would not stop. The character was the same with photophobia and phonophobia, but the intensity was worse. He was prescribed Topamax to help with migraine prevention. A magnetic resonance imaging scan was ordered. A November 10, 2021, VA clinic record reported ongoing headaches of 8/10 severity which had not resolved, but that Topiramate had decreased the frequency of headaches. The Veteran had 4 to 5 headaches in the past 3 months. He denied nausea and vomiting (N/V), but described being sensitive to light and having to lie down to "resolve feeling." The duration of primary pain was described as greater than 5 years which affected daily activities and physical activity. During a November 2021 VA examination, the Veteran described his first headache pain in service as about 8.5/10 in severity which last approximately 45 minutes. He reported a worsening of his headaches since his July 2020 VA examination with headache pain of 10/10 severity which lasted up to 2 days. He had been put on a new medication, which took a while to work and had not been effective, and had been scheduled for an MRI. The examiner noted symptoms of constant head pain; pulsating or throbbing head pain; pain on both sides of the head; and related tension. The examiner also noted that the Veteran experienced sensitivity to light and sensitivity to sound and indicated that the Veteran's headache pain typically lasted one or two days. While the November 2021 DBQ indicates worsening symptomology since the July 2020 VA examination, the examiner again determined that the Veteran did not experience prostrating attacks. In a December 2021 statement, the Veteran reported headache attacks twice a month that required him to lay down for a couple of hours while his medication took effect. In December 2021, the AOJ obtained a disability benefits questionnaire (DBQ) related to the Veteran's service-connected headaches. The examiner reviewed the Veteran's records and noted a diagnosis of cephalgia. The examiner noted the Veteran was taking several medications for his headache pain. Further, the examiner noted symptoms of constant head pain; pulsating or throbbing head pain; pain on both sides of the head; and related neck pain. The examiner also noted that the Veteran experienced sensitivity to light, sensitivity to sound, changes in vision, and mild dizziness. The examiner indicated that the Veteran's headache pain typically lasted more than two days. Finally, the examiner determined that the Veteran experienced prostrating attacks once every month but indicated these attacks were not productive of severe economic inadaptability, also noting that they did cause decreased concentration and productivity. A January 2022 VA clinic record reflected continued report of headaches of 9/10 severity, but there was no report of any increased frequency. Here, the Veteran has been awarded a 30 percent rating for migraine headaches effective December 3, 2021 - which contemplates one prostrating attack per month. As noted above, the appeal period for consideration extends to May 2, 2019. The Board must determine whether it is factually ascertainable from the lay and medical evidence that a worsening to the level of a 30 percent rating occurred at any reasonably specific date (e.g., month and year for pay purposes (see 38 C.F.R. § 3.31)) prior to December 3, 2021. At the outset, the Veteran has provided some potentially inconsistent descriptions regarding the historical nature of the frequency, severity and duration of his headaches and functional impairment. For example, during the November 2021 VA examination, the Veteran appears to describe his first headache pain in service as about 8.5/10 in severity with a worsening since that time. On the other hand, in 2018, the Veteran denied headaches during a yearly physical examination and otherwise described headaches as 6/10 severity (January 2021), 6/10 severity (July 2021), and 9.5/10 severity (October 2021). He has clearly described a worsening during the appeal period. The Board finds the most credible descriptions of headache symptoms involves the Veteran's contemporaneous reports to his treating physicians made in the context of receiving appropriate care and treatment rather than recollections made later in time which is subject to the failures of memory. In this context, the Board finds that, at the inception of the appeal period in May 2019, the Veteran did not describe headache characteristics of powerlessness or a lack of vitality. At his 2018 yearly physical, he reported having "no complaints" in general and specifically denied "any complaints of headaches" which is not descriptive of headaches causing powerlessness or lack of vitality. He did report a pain intensity of 6/10 severity in January and July 2021 which is self-report describing significant pain, but not at a level not reaching an incapacitating level on this scale. There was no description of causing powerlessness or lack of vitality. Rather, in August 2021, the Veteran reported chronic headache but denied dizziness or weakness. Weak is defined as lacking strength, such as being deficient in physical vigor. See https://www.merriam-webster.com/dictionary/weak. The Board finds persuasive evidence that this evidence does not describe, or more nearly approximate, any headaches resulting in powerlessness or lack of vitality - or being prostrating in nature. Thus, the Veteran was not experiencing any prostrating headaches during this time period. However, an October 13, 2021, VA clinic record included a new report that the Veteran's headaches over the last 3 to 4 days reached a pain level of 9.5/10 severity with a further description that the headache characteristics were the same as in the past but that the intensity was worse. In the context of the record, the Board finds that the Veteran reasonably described a worsening of his headache disorder to the extent of resulting in powerlessness or lack of vitality. And, the Board can further go back in time to the October 4, 2021, application where the Veteran filed a claim for "HEADACHE INCREASE." Prior to October 4, 2021, the Board finds insufficient evidence to factually ascertain a time period where the Veteran's headaches increased in severity. The August 2021 denial of headaches causing weakness - or a deficiency in physical vigor - is descriptive of non-prostrating headaches. Resolving reasonable doubt in the Veteran's favor, entitlement to a rating of 30 percent disabled is warranted since October 4, 2021. The Board finds that the criteria for a rating in excess of 50 percent is not warranted for any time during the appeal period. The Veteran describes prostrating attacks occurring approximately two times per month - or once every two weeks. The Board finds that this does not meet a high degree of happening at a short interval - or very frequent attacks. As the criteria of DC 8100 are successive, the criteria for a 50 percent rating are not met. See Johnson, 30 Vet. App. at 251-2. The Board further notes that the Veteran did not have prostrating attacks before taking medication, and he has reported that his medication use has been ineffective. The use of medication is not a hypothetical factor in this particular case. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Howell, Chad The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.